Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-06-16
SUPREME COURT.

r. E. Gaines, associate Justices; G. S. Morse,
clerk; NJ. NJ. johnson. bailif.
M. Samson, Mayor, VS.. L. D. Mercer ct
al, from johnson county; opinion by
Games, a. j. The territorial limits of
Alvarado are over q mile in diameter.
Appellees and some eighty other alleged
qualified voters living outside of the
mile in diameter presented petition
under act April II, 1888, to the Mayor to
order an election to declare so much of
the corporate limits not within the mile,
as no longer g part of the city. The
Mayor refused, and upon final hearing
IN the court below writ of msndamus
was awarded and hence this sppesl.
The grounds for refusal set forth
are that the act of ordering an election
was question of discretion and judg-
ment and not the subject of mandsmus.
After determining first that there is g
surplus over the limits prescribed by law,
end second that at least fifty qualified
voters of that district have signed the pc
tition, which facts in the petition are ad-
mitted by demurrer, the discretionary
power is lost, and the act TO be per
formed is purely ministerial. The cases
cited by appellant to sustain MS position
are not parallel cases, while the case of
Gibbs VS.. Bartlett is in point,
and supports our views. The OBJ
lection that the law of 1883 is
not valid because it does not direct the
manner in which the especial election
shall be held, is not good because it is
made part of title II, Z. S., and we
think The Legislature intended it to be
held as other elections. The objection
that the signers had no interest to justify
ordering an election is not sustained, be-
cause they are alleged qualified voters
and subject to e poll tax, which gives
them direct interest in having the terri
tory excluded from SAID limits. They
are doubtless subject to other burdens
and restrictions. The refusal to
grant the order is arbitrary
and the petition was sufficient &C.
cording to the most rigid rules OF plead
ing. The objection that evidence ought
to have been heard is not sustained. The
respondent pleaded general denial, and a
, special answer verified by affidavit. The
rules of common law obtain IN mandamus
proceedings and they do not allow a
general denial but require plea 20
= specially traverse the allegations of the
, writ or, by confession, avoidance.
The special answer is not sufficient iR
|
cation of petition, but merely states tas
application was rejected upon consideE&-
: ton and by advice of counsel. The judg-
ment is affirmed.
Mrs. r. A. White vs.. Gulf, Colorado
and Santa Fe Railway Company, from
McLepnan county; opinion by Gaines, A.
1 J. This was suit for damages for
$ burning Of grass land by appellee and 9
n verdict Of SIG4 for appellant. The main
= question is whether the evidence sup
ported so small verdict. There is
, some conflict as to area burnt over. and
n several witnesses placed the damage
? at S. per acre, based GG
{ the idea that farming land
5 rented 81 that, but the grass was burned
: late in July, when 1t was dry and the
: grass was soon renewed, and the Jury in
giving the verdict considered that the
grass, as it was, was not q understandable
article and also the short time the owner
was deprived of It's use. The damages
/ assessed seem small, but we can not dis
tuTb the verdict, under the uniform rule
?. that The finding of the jury must be held
: conclusive when the evidence supports it.
Judgment affirmed.
Isaac Myers ct al VS.. Kate Evans eli
al, from Bell county; opinion by Stayton,
= A. J. Appellees, to sustain their title,
d offer in evidence judgment rendered in
n 1867 against the administrator OF the
4 estate of original grantee. The judgment
: was Tor money and g foreclosure of g
: mortgage given by intestate. The judg-
. ment directed the clerk Of the County
a court to issue an order for
] the land to be sold under
! execution. This order was is
sued to the sheriff and appellees Claim
a under the vendee of sheritf's sale. The
B papers eyidencing these proceedings
were offered in evidence over objection OF
: appellants. We know of no statute au4
+ thOrizilg sale OF estate Of deceased
: person in the manner described The
4 judgment should have been certified to
: the County court and mOrtgaged proper
! ty sold by administrator. The invaI-
r idity of the sherif's deed breaks
S continuity of appellees tt
7 tie, AppelleeS do not show
. possession long enough and under such
i circumstances as to give title by limita-
e ton. There Is reason to suspect, but it
-. is not proved, that appellees occupied the
e property seven years as Il homestead aud
the husband may have attempted to sell
> to appellants without his wife Joining,
r and if this is shown appelIees may be en-
q titled to recover. For error in admitting
the evidence above, the judgment is re-
versed and the cause remanded.
Jonathan MYnders vs.. John Ralston ct
al, from Mason county; opinion by Willie,
c. J. This was contention as to tract
d Of land which was claimed by appellant
as included in survey No. SO, while app. /
7 lee claimed by virtue of state section No.
a SO. They prayed for survey Of both
= trsctS and order Of survey was made, and
c after survey the cause was submitted to
the court, which held that appellant failed
to establish title to the land. The
e exclusion of the deed from Green to
e Fsison, the original grantees of
; survey No. SO, was error, as its only
object was to show title in appellants to
! survey No. so, and this appelIees ad-
: united. One of the assignments OF error
/ leaves Us TO find the error. The only
/ question was whether survey No. Sc
: covered the land in question, i. e., Topped
over GU section &c. Under the assign
ment of error before Us the Judgment
must be confirmed, which, OF course,
afiirBs that part Of it which adiudgeS the
Z .r-As4 60 81 ,v,